State Ex Rel. Amelia Wright v. Bennett

• Decision Date: 07 March 1922
• Citation: 90 W.Va. 477
• Parties: State ex rel. Amelia Wright, v. Oscar L. Bennett.
• Court: West Virginia Supreme Court

90 W.Va. 477

State ex rel. Amelia Wright,

v.Oscar L. Bennett.

Supreme Court of Appeals of West Virginia.

Submitted February 28, 1922.

Decided March 7, 1922.

1. Bastards Nonsupport Statute Furnishes Cumulative Remedy in Determining Paternity and Compelling Support. Notwithstanding the provision made in ch. 80 of the Code, for determination of paternity of illegitimate children and

provision for their support, a cumulative remedy therefor is provided in sees. 16c (1) to 16c (8) of ch. 144 of the Code, commonly known as the nonsupport statute. (p. 479).

2. Same Order Requiring Defendant to Support Child Cannot be Made Solely Upon Complaint. Warrant, and Proof of Nonsupport.

In a proceeding under the provisions of chapter 144 of the Code, against the putative father of a bastard child, primarily to punish him for wilful neglect of the child and refusal to support it and incidentally to compel him to provide for its support, the court cannot properly make an order requiring him to support it pending the proceeding, solely upon the complaint and warrant supported by proof of nonsupport. To obtain such an order, the complainant must file a petition therefor in the proceeding, and give the defendant notice thereof and afford him an opportunity to resist the application by appropriate pleadings and proof, as in a civil action, (p. 481).

3. Same In Proceeding for Nonsupport Illegitimate Child Defendant Entitled to Jury Trial on Issue of Paternity Unless Waived, and Court Cannot Award Support Pendente Lite in Absence of Such Waiver.

If, upon such petition, an issue is made as to the paternity of the child, the defendant is entitled to a trial thereof by a jury, unless waived, and the court cannot properly award support pendente lite, in the absence of such waiver, unless nor until such issue has been determined against the defendant, by the verdict of a jury. (p. 482).

4. Same In Proceeding for Nonsupport of Illegitimate Child Where Relationship is Expressly Admitted, or Not Denied, the Court May Order Temporary Support.

If, however, in any case arising under said statute, the relation between the defendant and the person or persons who are alleged in the petition to be entitled to their support from him, is expressly admitted or not put in issue by a denial thereof, the court, upon its own finding and judgment as to what sum should be paid by him for temporary support, may award it against him and enforce payment thereof. (p. 483).

Error to Circuit Court, Mercer County.

Proceeding by the state on the relation of Amelia Wright, against Oscar L. Bennett for the nonsupport of an illegitimate child and being denied a jury trial, on question of paternity of the child, the defendant brings error.

Reversed and remanded.

James S. Kahle, for plaintiff in error.

E. T. England, Attorney General, and R. Dennis Steed, Assistant Attorney General, for defendant in error.

Poffenbarger, President:

On complaint filed and warrant issued under the provisions of secs. 16c (1) to 16c (8), inclusive of ch. 144 of Barnes' Code of 1918, commonly known as the nonsupport statute, the plaintiff in error was arrested, prosecuted and convicted of the paternity of an illegitimate child. On his arraignment in the Circuit Court of Mercer County, he demurred to the complaint and warrant and moved to quash them, and later, the motion having been overruled, he entered a plea of not guilty on which issue was joined. Thereafter, a continuance having been refused, he demanded a trial by jury, which was denied him. To all of these adverse rulings he excepted.

On the inquiry conducted by the court, he was found and held to be the father of the child, required to pay $4.00 per week to its mother, pending an inquest by the grand jury, at the next term of the court, and compelled to enter into a recognizance in the penalty of $500.00, and with condition to appear on the first day of such term, to answer such indictment as should be found against him. The basic issue in the inquiry conducted by the court was that of the paternity of the child then about two and a half years old. The accused had never been charged with such paternity in any proceeding under the bastardy statute, ch. 80 of the Code.

Although the statute under which the proceedings here narrated and complained of, authorizes prosecution of any parent who shall, without lawful excuse, desert or wilfully neglect or refuse to provide for the support and maintenance of his or her legitimate or illegitimate child or children, under the age of sixteen years, in destitute or necessitous circumstances, it makes no express provision for determination of the question of paternity, in any instance in which the accused is a man and the child illegitimate and the former denies the relation of parent. Apparently assuming the existence of the status of parent, it makes non-support of the child a criminal offense and incidentally provides means of coercing support of the child by the parent. In the cases of legitimate children, the parentage is so notorious and so readily susceptible of establishment that it is not often denied. In the cases of illegitimate children, the paternity, unless judicially established in a proceeding under the provisions of eh. 80 of the Code, is nearly always denied.' A vital and basic inquiry in this case is whether the non-support statute contemplates a proceeding against a man for failure to support an illegitimate child whose paternity he denies and of which he has never been convicted under the bastardy statute and in the manner provided by it.

But for the rule of evidence prescribed in sec. 16c (6) of the act, it would be difficult, if not impossible, consistently with the rules of interpretation and construction, to bring cases of this kind within its provisions. Serious consequences ensue upon the fixing of paternity of an illegitimate child upon a citizen. It affects his liberty, his estate and his earnings. That subject has been governed for many years by a statute, conferring the right of jury trial and carefully safeguarding the rights of the accused as well as those of the prosecutor. Code, ch. 80. In the act now under consideration, there is no express repeal of that statute.

However, in the enactment of ch. 80 of the Code, the Legislature did not exhaust its powers over the subject and its authority to provide additional remedies for the same wrong, making the new ones cumulative, is incontrovertible. Intent to do so in this instance is clearly indicated by the terms and provisions of the act, when read and considered together. The first section includes parents of children whether legitimate or illegitimate. Section six plainly contemplates trial of the issue of paternity of illegitimate children. It prescribes a rule of evidence to govern in proving that the defendant is the father or mother of "such child or children." These terms necessarily include both classes

of children, legitimate and illegitimate. Though the issue of relationship is more frequently raised in cases of paternity of illegitimate children, than in those involving maternity and the marital relation, it is easy to perceive that it may be just as vital and important in the other classes of cases. There may be efforts to charge men with the support of women as their wives, who are not their husbands, and women, as mothers of children, who are not their mothers. Imposters and pretenders may break into proceedings of the kind provided for by this statute, as well as others. Hence, if any exception is to be made, from its operation, it must be based upon the relative frequency or infrequency of the occurrence of issues as to the relationship charged and the fact that there is an additional and preexisting statutory remedy for one class of the cases it includes, not applicable to any of the others. This would be a flimsy and insufficient ground upon which to base it. Express terms in a statute do not often yield to implications, and never do unless they are so strong that the contrary thereof cannot reasonably be supposed. First National Bank v. DeBerritz, 87 W. Va. 477. Implied exceptions must be based upon...